TMI Blog2006 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... puts. The Aluminium Pistons so manufactured out of modvatable imports were exported through merchant exporter. The merchant-exporters claimed customs drawback. When the appellant claimed refund of outstanding Modvat credit on the inputs, the claim was on the ground that allowing of refund of Modvat credit would be double benefit as the Merchant exporters availed of drawback benefit. The respondent manufacturer went on appeal before the Commissioner and the Commissioner the appeal in favour of the respondent. The present appeal is directed against that order. The finding of the Commissioner may be read:- 'I have carefully gone through the case records. Memorandum of Appeal and records of Personal Hearing. The adjudicating authority has rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0Q2, in respect of such duty. A careful reading of the proviso reveals that it uses the word "manufacturers' and not the "ex porters. Therefore, it is obvious, that when the manufacture of the ex ported goods has not availed any drawback or rebate of duty, he cannot be denied the benefit as provided under Rule 5 of the Cenvat Credit Rules. Further, while going through the case laws on the issue involved I find that in the case of Collector of Central Excise, New Delhi v. Gars Laboratories Pvt. Ltd. 1997 (92) E.L.T 696 (Tribunal), it has been held that refund of unutilised credit admissible even if goods were exported through a merchant- exporter. In this case also, the exporter of the goods was working under DEEC Scheme. Again, in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed to the exporters for the duties of Customs and Central Excise suffered on the imported or indigenous inputs used in the manufacture of the export product for which no relief is otherwise available. Accordingly, in the All Industry Rates Drawback Table, notified by the Central Government annually, the drawback rates for various export products are also indicated with their Customs and Central Excise allocations. The Customs allocation denotes the Basic Customs Duty, Surcharge on Basic Customs Duty and the Special Additional Duty paid, if any. The Central Excise allocation represents the Additional Duty of Customs le viable in terms of Section 3 of the Customs Tariff Act, 1975 or the Central Excise duty leviable in terms of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no double benefit available to the manufacturer where only Customs portion of All Industry Rate of Drawback is claimed, if refund of unutilised credit is given, as no Modvat (now CENVAT) credit facility is permissible for Customs duties suffered on imported inputs. Denial of refund of Modvat credit of Excise/Countervailing duty paid on inputs relating to export products, if this cannot be used otherwise, will this not only act harshly on the exporters, it will not be in accordance with the provisions of the Modvat rules. (4) It is, therefore, clarified that where only Customs portion of duties is claimed as per the All Industry Rate of Drawback, Rule 57F(14), does not a in the way of admitting refund of unutilised credit of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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